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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

9 FLRA No. 41
FLORIDA NATIONAL GUARD
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-91, R5-107,
R5-120
Charging Party
Case No. 4-CA-407
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT BE ORDERED TO
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.
EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED BY THE RESPONDENT, AND AN
OPPOSITION THERETO WAS FILED BY THE CHARGING PARTY.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. /1/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS
THE JUDGE'S SECTION 7116(A)(1) AND (6) FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. /2/ STATE OF NEVADA NATIONAL GUARD, 7 FLRA NO.
37(1981), APPEAL DOCKETED, NO. 82-7034 (9TH CIR.JAN. 18, 1982). SEE
ALSO DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, ALBANY,
NEW YORK, 8 FLRA NO. 33(1982), APPEAL DOCKETED, NO. 82-4072(2DCIR.APR.
16, 1982). /3/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE FLORIDA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND
ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE
MILITARY UNIFORM," OR IN ANY OTHER MANNER FAILING OR REFUSING TO
COOPERATE IN IMPASSE DECISIONS OR PROCEDURES.
(B) REFUSING TO ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE
BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120:
INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
DUTIES, SHALL HAVE THE
DAILY OPTION OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN
AGREED-UPON STANDARD
CIVILIAN ATTIRE WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE
OBTAINED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
(C) REFUSING TO AGREE UPON AND INCORPORATE IN ITS COLLECTIVE
BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, THOSE CIRCUMSTANCES AND
OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) ADOPT THE FOLLOWING LANGUAGE IN ITS COLLECTIVE BARGAINING
AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
R5-91, R5-107 AND R5-120:
INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
DUTIES, SHALL HAVE THE
DAILY OPTION OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN
AGREED-UPON STANDARD
CIVILIAN ATTIRE WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE
OBTAINED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
(B) MEET AND NEGOTIATE WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, REGARDING THOSE
CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
UNIFORM MAY BE REQUIRED AND INCORPORATE THE AGREEMENT REACHED IN ITS
COLLECTIVE BARGAINING AGREEMENT.
(C) POST AT ITS FACILITIES, WHEREEVER UNIT EMPLOYEES ARE LOCATED,
COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE
SIGNED BY THE ADJUTANT GENERAL OF THE FLORIDA NATIONAL GUARD AND SHALL
BE POSTED BY HIM FOR 60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE ADJUTANT GENERAL SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 30, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO HONOR AND ABIDE BY THE JANUARY 29, 1980,
DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING
"WEARING OF THE MILITARY UNIFORM" OR IN ANY OTHER MANNER FAIL OR REFUSE
TO COOPERATE IN IMPASSE DECISIONS OR PROCEDURES.
WE WILL NOT REFUSE TO ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE
BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120:
INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
DUTIES, SHALL HAVE THE
DAILY OPTION OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN
AGREED-UPON STANDARD
CIVILIAN ATTIRE WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE
OBTAINED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
WE WILL NOT REFUSE TO AGREE UPON AND INCORPORATE IN OUR COLLECTIVE
BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, THOSE CIRCUMSTANCES AND
OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING
AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
R5-91, R5-107 AND R5-120:
INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
DUTIES, SHALL HAVE THE
DAILY OPTION OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN
AGREED-UPON STANDARD
CIVILIAN ATTIRE WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE
OBTAINED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
WE WILL MEET AND NEGOTIATE WITH THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120, REGARDING THE
CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
UNIFORM MAY BE REQUIRED AND INCORPORATE THE AGREEMENT REACHED IN OUR
COLLECTIVE BARGAINING AGREEMENT WITH SUCH LABOR ORGANIZATION.
(AGENCY OR ACTIVITY)
DATED:
BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IV,
1776 PEACHTREE STREET, NW., SUITE 501, NORTH WING, ATLANTA, GEORGIA
30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
LINDA J. NORWOOD, ESQ.
JAMES R. PUGHER, ESQ.
FOR THE GENERAL COUNSEL
RANDY J. COHEN, ESQ.
FOR THE CHARGING PARTY
LT. COL. RICHARD G. WEINBERG
COL. C. M. MCCORMICK
FOR THE RESPONDENT
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
ON APRIL 22, 1980 BASED UPON A CHARGE FILED ON MARCH 25, 1980 BY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107, AND
R5-120, HEREIN REFERRED TO AS THE CHARGING PARTY OR UNION. THE
COMPLAINT ALLEGES, AND THERE IS NO SERIOUS FACTUAL DISPUTE, THAT FLORIDA
NATIONAL GUARD, HEREIN REFERRED TO AS THE RESPONDENT, REJECTED AND
REFUSED TO COMPLY WITH A DECISION AND ORDER OF THE FEDERAL SERVICE
IMPASSES PANEL, HEREIN REFERRED TO AS THE FSIP OR THE PANEL, IN CASE NO.
78 FSIP 100. BY SO DOING, RESPONDENT IS ALLEGED TO HAVE VIOLATED
SECTIONS 7116(A)(1), (5), (6) AND (8) OF THE STATUTE.
THE ISSUES, AS SET FORTH IN THE GENERAL COUNSEL'S BRIEF, ARE AS
FOLLOWS:
A. WHETHER RESPONDENT'S REFUSAL TO COMPLY WITH A DECISION AND ORDER
OF THE FSIP VIOLATES
SECTIONS 7116(A)(1), (6) AND (8) OF THE STATUTE.
B. WHETHER RESPONDENT'S REFUSAL TO ENTER INTO NEGOTIATIONS WITH THE
UNION CONCERNING
COMPLIANCE WITH A DECISION AND ORDER OF THE FSIP, UPON REQUEST BY THE
UNION, VIOLATES SECTIONS
7116(A)(1) AND (5) OF THE STATUTE
THIS CASE REPRESENTS ANOTHER CHAPTER IN THE CONTINUING SAGA OF THE
EFFORTS BY THE NATIONAL GUARD TO EVENTUALLY OBTAIN COURT REVIEW OF A
DECISION OF THE FEDERAL SERVICE IMPASSES PANEL. IN THE ABSENCE OF ANY
STATUTORY PROVISION PERMITTING DIRECT REVIEW OF AN ADVERSE FSIP
DECISION, THE NATIONAL GUARD IN THIS AND IN OTHER CASES THROUGHOUT THE
COUNTRY /4/ IS EXHAUSTING ITS ADMINISTRATIVE AND STATUTORY REMEDIES BY
FIRST SUBJECTING ITSELF TO AN UNFAIR LABOR PRACTICE PROCEEDING SO THAT
IT CAN LAY THE GROUNDWORK FOR COURT REVIEW PURSUANT TO SECTION 7123 OF
ANY ADVERSE DECISION BY THE FEDERAL LABOR RELATIONS AUTHORITY. THUS,
RESPONDENT IS ACTING IN ACCORDANCE WITH THE VIEWS OF THE AUTHORITY AS
SET FORTH IN ITS DECISIONS DENYING PETITIONS FOR DIRECT REVIEW OF A
FEDERAL SERVICE IMPASSES PANEL DECISION AND ORDER. /5/
AT THE HEARING IN ST. AUGUSTINE, FLORIDA ALL PARTIES WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THEREAFTER, RESPONDENT AND GENERAL COUNSEL
FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE MISSION OF THE EMPLOYER IS TO PROVIDE UNITS OF TRAINED
PERSONNEL TO AUGMENT THE ARMED FORCES OF THE UNITED STATES, AND TO
PRESERVE PEACE, ORDER, AND PUBLIC SAFETY WITHIN THE STATE OF FLORIDA.
TO CARRY OUT THIS MISSION THE EMPLOYER MAINTAINS A CADRE OF SOME 530
ARMY AND 320 AIR NATIONAL GUARD TECHNICIANS. MOST OF THESE EMPLOYEES
ARE LOCATED AT JACKSONVILLE (432), CAMP BLANDING (110), AND ST.
AUGUSTINE, FLORIDA (106), BUT THERE ARE 17 ONE-PERSON AND 11 TWO-PERSON
LOCATIONS AMONG THE MANY WHICH ARE SERVED BY ARMY NATIONAL GUARD
TECHNICIANS.
2. AT ALL TIMES MATERIAL HEREIN, INCLUDING SINCE ON OR ABOUT AUGUST
1971, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91,
R5-107 AND R5-120 HAVE BEEN CERTIFIED AS EXCLUSIVE REPRESENTATIVES IN
APPROPRIATE UNITS OF ALL NON-SUPERVISORY WAGE GRADE, AND GENERAL
SCHEDULE ARMY AND AIR NATIONAL GUARD TECHNICIANS IN THE STATE OF FLORIDA
BUT EXCLUDING SUPERVISORS AND NON-SUPERVISORY EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK EXCEPT IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES, AND GUARDS IN NAGE LOCAL
R5-91, R5-107 AND R5-120.
3. THE CERTIFIED UNITS REFERRED TO ABOVE IN PARAGRAPH 2 HAVE BEEN
EMBODIED IN THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT APPROVED
JANUARY 29, 1975 BETWEEN RESPONDENT AND UNION.
4. AT ALL TIMES MATERIAL HEREIN, INCLUDING ALL TIMES SINCE JANUARY
29, 1975, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
R5-91, R5-107 AND R5-120 HAVE BEEN AND ARE THE EXCLUSIVE REPRESENTATIVES
OF THE EMPLOYEES IN THE UNITS DESCRIBED ABOVE IN PARAGRAPH 2.
5. AT ALL TIMES MATERIAL HEREIN, THE FOLLOWING NAMED PERSONS
OCCUPIED THE POSITIONS SET OPPOSITE THEIR RESPECTIVE NAMES AND HAVE BEEN
AND ARE NOT SUPERVISORS AND MANAGEMENT OFFICIALS OF THE RESPONDENT
WITHIN THE MEANING OF 5 USC 7103(A)(10) AND (11) AND ARE AGENTS OF
RESPONDENT AT ITS ST. AUGUSTINE, FLORIDA LOCATION:
K. C. BULLARD -- MAJOR GENERAL, COMMANDER
FLORIDA NATIONAL GUARD
C. M. MCCORMICK, JR. -- COLONEL, SS, FLARING
TECHNICIAN PERSONNEL OFFICER
6. ON NOVEMBER 29, 1979, THE FEDERAL SERVICE IMPASSES PANEL ISSUES
ITS REPORT AND RECOMMENDATION IN CASE NO. 78 FSIP 100 INVOLVING
RESPONDENT AND UNION HEREIN IN WHICH IT MADE THE FOLLOWING SETTLEMENT
RECOMMENDATIONS TO THE PARTIES:
1. THE WEARING OF THE MILITARY UNIFORM
A. THE PARTIES SHOULD ADOPT LANGUAGE IN THEIR AGREEMENT AFFORDING
INDIVIDUAL EMPLOYEES,
WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, THE DAILY OPTION
OF WEARING EITHER (A)
THE MILITARY UNIFORM OR (B) AN AGREED UPON STANDARD CIVILIAN ATTIRE
WITHOUT DISPLAY OF
MILITARY RANK, SUCH CLOTHING TO BE OBTAINED BY EMPLOYEES WHO CHOOSE
TO WEAR IT.
B. THE PARTIES SHOULD AGREE UPON EXCEPTIONS TO COVER THOSE
CIRCUMSTANCES AND OCCASIONS FOR
WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED.
7. ON JANUARY 29, 1980, THE FSIP ISSUED ITS DECISION AND ORDER IN
CASE NO. 78 FSIP 100 INVOLVING RESPONDENT AND UNION HEREIN IN WHICH IT
ORDERED THE PARTIES TO ADOPT IN THEIR COLLECTIVE BARGAINING AGREEMENT
THE RECOMMENDATIONS OF THE FSIP AS CONTAINED IN ITS REPORT AND
RECOMMENDATIONS IN CASE NO. 78 FSIP 100, WHICH RECOMMENDATIONS ARE SET
FORTH ABOVE IN PARAGRAPH 6.
8. ON OR ABOUT FEBRUARY 20, 1980, RANDY J. COHEN, ATTORNEY FOR THE
UNION, WROTE COLONEL MCCORMICK REQUESTING NEGOTIATIONS CONCERNING
COMPLIANCE WITH THE JANUARY 29, 1980 FSIP DECISION AND ORDER.
RESPONDENT ON OR ABOUT FEBRUARY 29, 1980 BY IT SUPERVISOR, MANAGEMENT
OFFICIAL AND AGENT TECHNICIAN PERSONNEL OFFICER COLONEL C. M. MCCORMICK,
JR., INFORMED IN WRITING MR. HOWARD W. SOLOMON, EXECUTIVE DIRECTOR,
FSIP, WITH A COPY TO THE UNION, THAT RESPONDENT WAS REJECTING THE FSIP'S
DECISION AND ORDER IN CASE NO. 78 FSIP 100 AND WOULD NOT COMPLY WITH IT.
THE PERTINENT PART OF THAT LETTER IS QUOTED BELOW.
"THE PANEL DECISION AND ORDER HAS BEEN CAREFULLY REVIEWED, AND IT
APPEARS THAT MANAGEMENT IS IN THE UNTENABLE POSITION OF BEING PUT IN
VIOLATION OF ITS LAWFUL MILITARY REQUIREMENTS, IF THE BASIC ISSUE
INVOLVED IS NOT OTHERWISE RESOLVED. THE AUTHORITY FOR WEAR OF THE
MILITARY UNIFORM FLOWS FROM STATUTORY REQUIREMENT UNDER THE UNITED
STATES CODE, WHICH PRESCRIBES THE WEAR AND USE OF THE MILITARY UNIFORM,
UNDER APPROPRIATE REGULATIONS OF THE SECRETARY OF DEFENSE. THE IMPASSE
IS NOT BETWEEN LABOR AND MANAGEMENT, BUT ARISES FROM COMPLIANCE WITH
MISSION ESSENTIAL REQUIREMENTS OF THE NATIONAL GUARD.
IT IS FURTHER SUBMITTED THAT THE ISSUE IS ONE WHICH LEAVES NO AVENUE
OF SETTLEMENT OR NEGOTIATION OPEN TO THE FLORIDA NATIONAL GUARD. THE
UNIFORM WEAR IS AN INTEGRAL PART OF THE MISSION OF NATIONAL GUARD
PERSONNEL, AND IT IS NOT APPROPRIATE FOR THE AUTHORITY TO COMPEL
REQUIREMENTS INCOMPATIBLE WITH THE FUNCTION AND MISSION OF THE NATIONAL
GUARD.
THE FLORIDA NATIONAL GUARD HAS THEREFORE CONCLUDED THAT COMPLIANCE
WITH THE PANEL'S DECISION AND ORDER CANNOT BE INITIATED IN GOOD
CONSCIENCE AS IT RELATES TO THE UNIFORM ISSUE. IN VIEW OF THIS
CONCLUSION, AND THE FACT THAT NO AVENUE OF REVIEW OR APPEAL EXISTS, THIS
HEADQUARTERS MUST RESPECTFULLY REJECT THE PANEL'S DECISION . . . ."
A COPY OF THIS FEBRUARY 29, 1980, LETTER OF COLONEL MCCORMICK
REFUSING COMPLIANCE WITH THE PANEL'S DECISION AND ORDER WAS SENT SO MR.
COHEN IN RESPONSE TO HIS FEBRUARY 20, 1980 REQUEST FOR COMPLIANCE
NEGOTIATIONS WITH REGARD TO THE PANEL'S DECISION AND ORDER.
9. SINCE ON OR ABOUT FEBRUARY 29, 1980 AND CONTINUING TO DATE,
RESPONDENT HAS AT ITS ST. AUGUSTINE, FLORIDA LOCATION, IN VIOLATION OF 5
USC 7116(A)(1) AND (6) FAILED AND REFUSED AND CONTINUES TO FAIL AND
REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND DECISIONS BY REFUSING TO
COMPLY WITH AND REJECTING THE FSIP DECISION AND ORDER IN CASE NO. 78
FSIP 100 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND 8.
10. SINCE ON OR ABOUT FEBRUARY 29, 1980 AND AT ALL TIMES THEREAFTER,
RESPONDENT HAS, AT ITS ST. AUGUSTINE, FLORIDA LOCATION, IN VIOLATION OF
5 USC 7116(A)(1) AND (8), FAILED AND REFUSED AND CONTINUES TO FAIL AND
REFUSE TO COMPLY WITH THE PROVISIONS OF 5 USC 7119(C)(5)(C) BY FAILING
AND REFUSING AND CONTINUING TO FAIL AND REFUSE TO ADOPT IN THEIR
AGREEMENT WITH THE UNION THE BINDING LANGUAGE OF THE FSIP DECISION AND
ORDER IN CASE NO. 78 FSIP 100 AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND
8.
11. SINCE ON OR ABOUT FEBRUARY 29, 1980 AND AT ALL TIMES THEREAFTER
RESPONDENT DID REFUSE AND CONTINUES TO REFUSE TO BARGAIN IN FOOD FAITH
WITH THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE
UNITS DESCRIBED ABOVE IN PARAGRAPH 2 IN THAT RESPONDENT FAILED AND
REFUSED AND CONTINUES TO FAIL AND REFUSE TO NEGOTIATE IN GOOD FAITH THE
REQUIREMENTS OF THE LANGUAGE AND ADOPT IN THEIR AGREEMENT WITH THE UNION
THE REQUIREMENTS OF THE FSIP DECISION AND ORDER IN CASE NO. 78 FSIP 100
AS OUTLINED ABOVE IN PARAGRAPHS 6, 7 AND 8 AS PART OF ITS FINAL
RESOLUTION OF THE IMPASSE BETWEEN THE RESPONDENT AND THE UNION.
DISCUSSION AND ANALYSIS
THE PERTINENT STATUTORY PROVISIONS INVOLVED IN THIS PROCEEDING ARE AS
FOLLOWS:
SEC. 7116. UNFAIR LABOR PRACTICES
"(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
"(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER; . . .
"(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
"(6) TO FAIL OR REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND IMPASSE
DECISIONS AS REQUIRED
BY THIS CHAPTER; . . .
"(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
IN ADDITION, SECTION 7119(C)(5)(C) OF THE STATUTE PROVIDES THAT:
NOTICE OF ANY FINAL ACTION OF THE PANEL UNDER THIS SECTION SHALL BE
PROMPTLY SERVED UPON
THE PARTIES, AND THE ACTION SHALL BE BINDING ON SUCH PARTIES DURING
THE TERM OF THE AGREEMENT,
UNLESS THE PARTIES AGREE OTHERWISE.
ALTHOUGH THE AUTHORITY'S NEW YORK AND CALIFORNIA DECISIONS (CITED
HEREIN IN PARAGRAPH 2) WERE NOT UNFAIR LABOR PRACTICE PROCEEDINGS, IT IS
SIGNIFICANT THAT THE AUTHORITY REFERRED TO THE FOLLOWING LEGISLATIVE
HISTORY (H.REP.NO. 95-1403, JULY 31, 1978, AT 54-55) AND ITSELF ADDED
EMPHASIS TO A PORTION THEREOF:
NOTICE OF ANY FINAL ACTION OF THE PANEL MUST BE PROMPTLY SERVED UPON
THE PARTIES, AND THE
ACTION IS FINAL AND BINDING UPON THE PARTIES DURING THE TERM OF THE
AGREEMENT, UNLESS THE
PARTIES AGREE OTHERWISE. FINAL ACTION OF THE PANEL UNDER THIS
SECTION IS NOT SUBJECT TO
APPEAL, AND FAILURE TO COMPLY WITH ANY FINAL ACTION ORDERED BY THE
PANEL CONSTITUTES AN UNFAIR
LABOR PRACTICE BY AN AGENCY UNDER SECTION 7116(1)(6) AND (8) OR A
LABOR ORGANIZATION UNDER
SECTION 7116(B)(6) AND (8).
THE FOREGOING LANGUAGE OF THE AUTHORITY COMPELS ME TO THE FOLLOWING
CONCLUSIONS: A FINAL ACTION OF THE FSIP IS BINDING UPON THE PARTIES AND
IS NOT SUBJECT TO COLLATERAL ATTACK IN AN UNFAIR LABOR PROCEEDING;
RATHER, THE ONLY ISSUE BEFORE ME IS RESPONDENT'S COMPLIANCE WITH THAT
DECISION. THERE BEING NO DISPUTE ABOUT RESPONDENT'S NON-COMPLIANCE, I
AM CONSTRAINED TO FIND A VIOLATION OF SECTION 7116(A)(6) AND (8). /6/
FURTHER, BY REJECTING THE STATUTORY PROCEDURE ENACTED TO RESOLVE IMPASSE
DISPUTES, RESPONDENT HAS INTERFERED WITH THE RIGHTS OF EMPLOYEES IN
VIOLATION OF SECTIONS 7116(A)(1). /7/
A NEW ISSUE PRESENTED IN THE INSTANT PROCEEDING IS WHETHER RESPONDENT
REFUSED TO "CONSULT OR NEGOTIATE" AS REQUIRED BY THE STATUTE. IN
VETERAN'S ADMINISTRATION, SALEM, VIRGINIA, 1 FLRA NO. 101(AUGUST 21,
1979) THE AUTHORITY HELD THAT THE REFUSAL TO NEGOTIATE ON AN ISSUE AFTER
THE ISSUE HAD BEEN DETERMINED TO BE NEGOTIABLE BY THE PROCESSES UNDER
THE EXECUTIVE ORDER, CONSTITUTES AN UNFAIR LABOR PRACTICE PURSUANT TO
SECTIONS 19(A)(1) AND (6) OF THE ORDER. IN THAT CASE, RESPONDENT
REFUSED TO BARGAIN OVER AN ISSUE DEEMED NEGOTIABLE BY THE FLRC, PENDING
RESPONDENT'S REQUEST TO THE UNITED STATES ATTORNEY GENERAL FOR AN
OPINION AS TO THE RESPONSIBILITY OF RESPONDENT TO ABIDE BY A
NEGOTIABILITY DETERMINATION OF THE FLRC WHICH WAS ALLEGEDLY CONTRARY TO
THE AGENCY'S REGULATIONS. THE AUTHORITY DETERMINED THAT RESPONDENT'S
ACTIONS IN HOLDING NEGOTIATIONS IN ABEYANCE PENDING REFERRAL OF A
REQUEST FOR AN OPINION OF THE U.S. ATTORNEY GENERAL FOR REVIEW DOES NOT
RELIEVE RESPONDENT OF ITS OBLIGATION TO BARGAIN.
ACCORDINGLY, IF IN VETERAN'S ADMINISTRATION, SALEM, VIRGINIA, SUPRA,
IT WAS HELD BY THE AUTHORITY THAT RESPONDENT'S REFUSAL TO BARGAIN OVER
AN ISSUE DETERMINED TO BE NEGOTIABLE BY THE PROCEDURES PROVIDED FOR
DETERMINING SUCH NEGOTIABILITY, WAS VIOLATIVE OF SECTIONS 19(A)(1) AND
(6) OF THE ORDER, THEN I AGREE WITH THE GENERAL COUNSEL THAT IN THE
INSTANT CASE, A FORTIORI, RESPONDENT'S REFUSAL TO BARGAIN, UPON REQUEST
BY THE UNION, OVER COMPLIANCE WITH A DECISION AND ORDER OF THE FSIP IS
ALSO VIOLATIVE OF SECTION 7116(A)(1) NAD (5) /8/
RESPONDENT ATTEMPTS TO DEFEND ITS REJECTION OF AND REFUSAL TO COMPLY
WITH THE FSIP'S DECISION AND ORDER, IN ESSENCE, BY ASSERTING THAT: THE
FSIP HAS NO JURISDICTION TO RULE ON A MATTER OF "PURELY MILITARY
CONCERN", I.E., THE WEARING OF THE MILITARY UNIFORM; THE WEARING OF THE
MILITARY UNIFORM IS A NON-NEGOTIABLE ISSUE; AND THE FSIP ERRED IN ITS
DECISION AND ORDER. I AGREE WITH THE GENERAL COUNSEL THAT THE ABOVE
DEFENSES HAVE BEEN RAISED IN THE PAST BY VARIOUS RESPONDENT NATIONAL
GUARDS UNITS IN SIMILAR CIRCUMSTANCES AND HAVE BEEN UNIFORMLY FOUND
NON-MERITORIOUS. WITH REGARD TO SAID DEFENSES RAISED BY RESPONDENT, THE
FEDERAL LABOR RELATIONS COUNCIL (FLRC) IN NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R14-87 AND KANSAS NATIONAL GUARD (AND OTHER
CASES CONSOLIDATED THEREWITH), FLRC NO. 76A-16, 5 FLRC 124(1977),
RECONSIDERATION DENIED 5 FLRC 336(1977) FOUND, IN PERTINENT PART, THAT
THE ISSUE OF THE WEARING OF THE MILITARY UNIFORM BY CIVILIAN TECHNICIANS
WAS NEGOTIABLE. ACCORDINGLY, I REJECT RESPONDENT'S DEFENSES, AND I
REAFFIRM ANY RULING AT THE HEARING DENYING ITS MOTION TO DISMISS.
IN CONCLUSION, THE RECORD DEMONSTRATES THAT RESPONDENT HAS FAILED AND
REFUSED TO COMPLY AND COOPERATE WITH A FINAL DECISION AND ORDER OF THE
FEDERAL SERVICES IMPASSES PANEL, IN VIOLATION OF 5 U.S.C. SEC.
7116(A)(6) AND (8), HAS FAILED AND REFUSED TO CONSULT AND NEGOTIATE WITH
THE UNION CONCERNING THE IMPLEMENTATION OF THE PANEL'S FINAL DECISION
AND ORDER, IN VIOLATION OF 5 U.S.C. 7116(A)(5), AND, BY SUCH ACTION, HAS
INTERFERED WITH AND RESTRAINED THE EXERCISE BY EMPLOYEES OF THEIR RIGHTS
IN VIOLATION OF 5 U.S.C. 7116(A)(1). TO REMEDY THESE VIOLATIONS, I
RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND SECTION 2423.29 OF THE
RULES AND REGULATIONS THE FEDERAL LABOR RELATIONS AUTHORITY HEREBY
ORDERS THAT THE FLORIDA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND
ORDER OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE
MILITARY UNIFORM" OR IN ANY MANNER FAILING OR REFUSING TO COOPERATE IN
IMPASSE DECISIONS OR PROCEDURES.
(B) REFUSING TO ADOPT THE FOLLOWING LANGUAGE IN THEIR COLLECTIVE
BARGAINING AGREEMENT WITH THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120:
INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
DUTIES, SHALL HAVE THE
DAILY OPTION OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN
AGREED-UPON STANDARD
CIVILIAN ATTIRE WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE
OBTAINED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
(C) FAILING AND REFUSING TO MEET AND NEGOTIATE IN GOOD FAITH WITH THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND
R5-120 CONCERNING "THOSE CIRCUMSTANCES AND OCCASIONS FOR WHICH THE
WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED", AND TO INCORPORATE THE
RESULTS OF SUCH NEGOTIATIONS IN THEIR COLLECTIVE BARGAINING AGREEMENT.
(D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) COOPERATE WITH THE FEDERAL SERVICE IMPASSES PANEL BY COMPLIANCE
FORTHWITH WITH ITS DECISION AND ORDER ISSUED ON JANUARY 29, 1980.
(B) MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCALS R5-91, R5-107 AND R5-120 AND NEGOTIATE IN GOOD FAITH CONCERNING
MATTERS PERTAINING TO THE IMPLEMENTATION OF THE DECISION AND ORDER OF
THE FEDERAL SERVICES IMPASSES PANEL ISSUED JANUARY 29, 1980.
(C) POST AT ITS FACILITIES IN FLORIDA COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY AN AUTHORIZED
REPRESENTATIVE, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE REGIONAL DIRECTOR OF REGION 4, 1776 PEACHTREE STREET,
N.W., SUITE 501, NORTH WING, ATLANTA, GEORGIA, 30309, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 13, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL HONOR AND ABIDE BY THE JANUARY 29, 1980, DECISION AND ORDER
OF THE FEDERAL SERVICE IMPASSES PANEL REGARDING "WEARING OF THE MILITARY
UNIFORM" AND COOPERATE WITH IMPASSE DECISIONS AND PROCEDURES.
WE WILL ADOPT THE FOLLOWING LANGUAGE IN OUR COLLECTIVE BARGAINING
AGREEMENT WITH NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
R5-91, R5-107 AND R5-120:
INDIVIDUAL EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
DUTIES, SHALL HAVE THE
DAILY OPTION OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN
AGREED-UPON STANDARD
CIVILIAN ATTIRE WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE
OBTAINED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
WE WILL MEET AND NEGOTIATE IN GOOD FAITH WITH NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCALS R5-91, R5-107 AND R5-120 AND INCORPORATE
INTO OUR COLLECTIVE BARGAINING AGREEMENT, THOSE AGREED-UPON
CIRCUMSTANCES AND OCCASIONS FOR WHICH "WEARING OF THE MILITARY UNIFORM"
MAY BE REQUIRED.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
(ACTIVITY OR AGENCY)
DATED:
BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
ADDRESS IS: 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING,
ATLANTA, GEORGIA 30309.
--------------- FOOTNOTES$ ---------------
/1/ IN THIS CONNECTION, THE RESPONDENT HAS ADVANCED NO BASIS
SUFFICIENT TO WARRANT CONSIDERATION BY THE AUTHORITY OF FACTUAL
ARGUMENTS NOT PREVIOUSLY RAISED BEFORE THE FEDERAL SERVICE IMPASSES
PANEL.
/2/ HOWEVER, THE AFFIRMATIVE ACTION PORTION OF THE JUDGE'S
RECOMMENDED ORDER IS MODIFIED HEREIN SPECIFICALLY TO REQUIRE THE
RESPONDENT TO COMPLY WITH THE DIRECTIVES OF THE FEDERAL SERVICE IMPASSES
PANEL BY INCLUDING PARTICULAR LANGUAGE IN ITS COLLECTIVE BARGAINING
AGREEMENT WITH THE CHARGING PARTY AND BY NEGOTIATING WITH THE CHARGING
PARTY CONCERNING RELATED MATTERS.
/3/ IN VIEW OF THAT FINDING, IT IS UNNECESSARY FOR THE AUTHORITY TO
PASS UPON WHETHER THE RESPONDENT'S CONDUCT ALSO VIOLATED SECTION
7116(A)(5) AND (8) OF THE STATUTE, AS FOUND BY THE JUDGE. SEE STATE OF
CALIFORNIA NATIONAL GUARD, 8 FLRA NO. 11(1982), APPEAL DOCKETED, NO.
82-7187(9TH CIR. APR. 1, 1982).
/4/ NEW YORK, CALIFORNIA, KENTUCKY, KANSAS, NEW MEXICO.
/5/ STATE OF NEW YORK, DIVISION OF MILITARY AND NAVAL AFFAIRS AND NEW
YORK COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, INC., 2 FLRA NO.
20(DECEMBER 5, 1979). ON THE SAME DATE, THE AUTHORITY ISSUED TWO
SIMILAR DECISIONS INVOLVING THE CALIFORNIA NATIONAL GUARD IN 2 FLRA NO.
21 AND 2 FLRA NO. 22.
/6/ DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, CASE
NO. 1-CA-19, (APRIL 9, 1980); STATE OF CALIFORNIA NATIONAL GUARD, CASE
NOS. 9-CA-44 AND 9-CA-95(MARCH 21, 1980). A MORE DETAILED DISCUSSION OF
THESE ISSUES IS CONTAINED IN THESE DECISIONS.
/7/ STATE OF NEW YORK, SUPRA, PAR. 3.
/8/ IN THE STATE OF CALIFORNIA CASE (SUPRA PAR.2), THE ALJ ALSO FOUND
A VIOLATION OF SECTION 7116(A)(5).